Positive victory for insurers - Simonds v Isle of Wight Council

(Queen's Bench Division - 23 September 2003) In 1997, a five year old was attending a school sports...

(Queen's Bench Division - 23 September 2003)

In 1997, a five year old was attending a school sports day at a local park with his mother. After the morning's activities his mother decided to go shopping. She sent her son to the teachers nearby and then left.

Instead of going to the teachers he went to play on the swings and broke his arm. He brought a claim against the defendant alleging that the accident had been caused by a breach of duty on the part of the school.

In a liability trial in March 2003 at Southampton County Court, the judge found for the claimant. The pleaded case of inadequate supervision failed but the judge found the council liable on the basis of an unpleaded case that the school knew the swings were a hazard but failed to immobilise them. Damages were agreed for the sum of £4250 but the defendant council appealed.

Mr Justice Gross allowed the appeal, quashed the damages and ordered the claimant to pay the defendant's costs. He concluded that the wrong standard of care had been applied and there was error on causation. The child was in the care of his mother and she had not returned him to the school's care before the accident had happened. The school's plan had considered the swings adequately; no other child played on them. Balancing the risk with the plan, there had been no breach of duty. Playing fields could not be made free from all hazard.

Gross also spoke about the danger of courts finding liability for unfortunate accidents. The danger was not that the swings would be fenced off but that if schools could be liable sports days would not be held. Such events would become uninsurable or only at prohibitive cost.

He said: "Even actions in tort must keep in mind an air of reality and common sense." He cited the warning on the same subject in the recent decision of the House of Lords for Tomlinson v Congleton Borough Council (2003).

COMMENT: Insurers should be thrilled at this victory for common sense. Let us hope it is part of a continuing trend. Insurers should also take heart at the court's recognition of the central role they play. Roy Woollard, BLM Leeds.

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